Of the many legal analyses of the NSA’s wiretap program that I’ve read - at least the ones actually written by lawyers - John @ Power Line Blog appears to have the best breakdown of the legality of this program that I’ve seen:
There is no mystery about the legality of the NSA intercept program. It is intended to capture foreign intelligence information, including information about potential terrorist threats, and as such, every federal court that has addressed the issue has held that it is within the inherent constitutional power of the President as Commander in Chief. Everything else is immaterial.
This brings us back where we started, i.e., the Constitution. The only constitutional limitation on the President’s power to intercept communications by Americans for national security purposes is that such intercepts be “reasonable.” Is it reasonable for the administration to do all it can to identify the people who are communicating with known terrorists overseas, via the terrorists’ cell phones and computers, and to learn what terrorist plots are being hatched by those persons? Is it reasonable to do so even when—rather, especially when–some portion of those communications come from people inside the United States? I don’t find it difficult to answer those questions; nor, if called upon to do so, would the Supreme Court.
There are, of course, liberal law professors who would like the law to be different from what it is. They are free to develop theories according to which the Supreme Court, should it someday address this issue directly, would rule as they wish. But the administration is entitled to rely on the law as it currently exists. And there is simply no question about the fact that under the Constitution and all controlling precedents, the NSA intercept program is legal.
John Schmidt, who was one of Clinton’s Associate Attorneys General, writes in the Chicago Tribune:
President Bush’s post- Sept. 11, 2001, authorization to the National Security Agency to carry out electronic surveillance into private phone calls and e-mails is consistent with court decisions and with the positions of the Justice Department under prior presidents.
The president authorized the NSA program in response to the 9/11 terrorist attacks on America. An identifiable group, Al Qaeda, was responsible and believed to be planning future attacks in the United States. Electronic surveillance of communications to or from those who might plausibly be members of or in contact with Al Qaeda was probably the only means of obtaining information about what its members were planning next. No one except the president and the few officials with access to the NSA program can know how valuable such surveillance has been in protecting the nation.
It will be interesting to see in the coming years how this plays out. My prediction is that a Court of Appeals, unless it’s the 9th Circuit, will rule in favor of the President. The Supreme Court will likely do the same - but much hinges as well on some other cases that will be heard before this as I believe they will establish precedent that may be applicable in this case in terms of the wartime powers of the President under Article II.